IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday, the 28th day of February, 2017
Filed on 09..04..2014
Present
1) Smt. Elizabeth George (President)
2) Sri. Antony Xavier (Member)
3) Smt. Jasmine D (Member)
in
CC/No.105/2014
Between
Complainant:- Opposite parties:-
Vishnu (Minor) represented by his father 1. The Board of Trustees Natural Guardian, Jayasimhan. S. HSS Thiruvambady
‘Jyothis’, Kavilparambu Pazhaveedu P.O.
Pazhaveedu P.O. Alappuzha – 688 009
Alappuzha – 688 009 Represented by its Manager
(By Adv. P. Roy)
2. Higher Secondary School
Thiruvambady, Pazhaveedu
P.O., Alappuzha – 688 009
Represented by its Principal
(By Adv. K.N.V. Panicker)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
Complainant is a plus two student of Thiruvampady, Higher Secondary School, Alappuzha of Commerce Department. The school is administered by the opposite party management. Complainant is paying regular fees for his studies of his son. The complainant is a consumer as defined in Section 2 (d) of the Consumer Protection Act and the opposite party is providing services to the complainant. On 4.6.2013, while the class was going on, the ceiling fan in the class fell down and injured him damaging the right eye of the complainant. Consequent to this he was taken to Government Hospital, Alappuzha by the school authorities. Due to the seriousness of the injury, Vishnu was taken to Giridhar Eye Hospital, Ernakulam for emergency care. The school authorities are well aware of these facts. The complainant was treated in Giridhar Eye Hospital and its diagnosis report says that there is a lid injury with lid swelling and ‘closed globe’ injury in the right eye. The doctors opined that long term treatment is needed to recuperate, but don’t guarantee recovery of vision. Thereafter the complainant was treated at Sreedhareeyam Ayurvedic Eye Hospital in Koothattukulam. The school authorities bore the initial expenses for treatments till Vishnu was treated in Giridhar Eye Hospital but have thereafter stopped looking into the case. Denying the payment towards treatment for the complainant, the school authorities are show grave in justice. The complainant is also entitled to compensation for the partial loss of vision. Because the injury suffered is of permanent nature the life and career of the boy has been irrecoverably affected. Hence the complaint is filed seeking the following reliefs:-
- To direct the opposite parties to pay an amount of Rs.5,2,181/-to the complainant reimbursement of all expenses towards his treatment both past and future.
- To direct the opposite parties to pay compensation of Rs.10 lakhs to the complainant loss of vision and for reimbursement to the complainant towards loss of vision and for reimbursement of all expenses towards his treatment both past and future.
- Direct the opposite party to pay cost of this proceeding.
- Issue any other order or relief as this Hon’ble Forum may deem fit and proper.
2. The version of the opposite parties is as follows:-
Complaint is not maintainable, since the complainant is not at all a consumer as defined u/s 2(d) of the Consumer Protection Act. The claim of the complainant is that he is paying fees for his studies and hence he is a consumer as alleged under section 2 (d) of the Consumer Protection Act and the opposite party is a consumer etc. are absolutely incorrect and hence denied. The opposite parties are not receiving any consideration for the studies of the complainant in the school. The entire fee he remits in the school is absolutely and entirely will be remitted to the Education Department of Government of Kerala. Not even a single paise is deducted from the fees of the peoples including the complainant and not appropriated by the opposite parties in any count. The complainant being a student on merit no donation or any fund of any manner was collected from the complainant either at the time of his admission or at any time subsequently. No building fund or maintenance fund was collected from the complainant by the opposite parties. The entire salary of the teachers of the School is paid by the Government and for every practical purpose it is a Government aided and Government controlled school. The authority of the opposite parties in respect of the school confine only to the appointment of teachers and other staff. As far as High Secondary schools are concerned the Government is not providing any grant or other fund for the maintenance of the building of the school. As per Rule 8 of Chapter 4 of the Kerala Education Rules the responsibility of the management confines to the annual maintenance of the school buildings and grounds only. Nowhere in the KER Act/Rules it is made mandatory that the class room should be provided with ceiling fan or other cooling devices. The ceiling fans are installed in the school only as a complimentary one and not as per the mandate of any statute or any other legal obligation. The opposite parties are not committed any negligence or deficiency in service or caused any injury to the complainant by the negligence or deficiency in service of the opposite parties. The ceiling fan was fitted in the concrete roof and the ceiling fan is a branded one. What was fell down is only the motor and its leaf and not the leaving all other parts including the hanging bar fitted on the roof. It fell down not due to any negligence of the opposite parties. It is purely an act of God or the manufacturing defect of the ceiling fan for which no responsibility or liability can be fastened with any of the opposite parties. Immediately on the happening of the incident the complainant was taken to the Government hospital, thereafter to the Giridhar Eye Hospital, Ernakulam by and at the instance of the opposite parties and the entire expenses for treatment and conveyance was meted out and incurred by the opposite parties as a moral obligation and not due to any legal obligation. The complainant did not sustain any serious injury as projected in the complaint. The complainant was cured off all the injuries and ailments by the treatment in the Giridhar Eye Hospital, Ernakulam. It is not the initial expenses that was incurred by the opposite parties, but the entire expenses for treatment in Giridhar Hospital till he was cured off the ailments was meted out by the opposite parties. The opposite parties are not bound to accede or comply with the unwarranted and ineligible demands made by the complainant. The complainant did not suffer any permanent injury and his career is not at all affected in any way. The complainant is not entitled to any of the reliefs prayed for in the complaint.
3. The complainant was examined as PW1 and documents produced were marked as Exts.A1 to A11. Three witnesses were examined as PW2, PW3 and PW4. Opposite party was examined as RW1.Two witnesses were examined as RW2 and RW3. The disability certificate produced by the complainant was marked as Ext.C1.
4. The points came up for considerations are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get relief and cost?
5. Point No.1:- According to the complainant he is a consumer of the opposite party. But the opposite party raised a contention that the complainant is not a consumer as alleged u/s 2(d) of the Consumer Protection Act. According to the opposite party they are not receiving any consideration for the studies of the complainant in the school. They further stated that the complainant being a student on merit no donation or any fund of any manner was collected from the complainant either at the time of his admission or at any time subsequently. While cross examining the complainant he categorically stated that he was admitted through management quota after paying donation. In order to substantiate the allegation he has produced list of students admitted in commerce computer of HSS., Thiruvamabady, Alappzuha during the year 2012-13 Plus One course and it marked as Ext.A11. It shows that complainant was admitted in the school in management quota. So the contention of the opposite party that complainant was admitted on merit is not reliable. Ext. A5 is the fee receipt issued by the opposite party to the complainant. It also shows that opposite party has received Rs.250/- from the complainant under different heads. From these documents, we are of opinion that complainant is hiring the service of the opposite party after remitting consideration. Hence the complainant is a consumer as defined u/s 2(d) of the Consumer Protection Act and the complaint is maintainable.
6. Point No.2:- It is an admitted fact that complainant is a Plus two student of the opposite party’s school. According to the complainant on 4.6.2013 while the class was going on the ceiling fan in the class fell down and injured him damaging the right eye of the complainant. According to the complainant, the opposite parties are liable for not only the expenditure, but also for compensating the child for the trauma, pain, loss and injury caused due to the negligence. According to the opposite party, the fan fell down not due to any negligence of the opposite parties. It is purely an act of God or a manufacture defect of the ceiling fan for which no responsibility or liability can be fastened with any of the opposite parties. According to the opposite party, the ceiling fans are installed in the school only as a complementary one and not as per the mandate of any statute. The opposite parties have no case that the ceiling fan fitted in the class rooms were not under their care and maintenance. Therefore, it is the duty of the opposite parties to keep the ceiling fan in safe and good condition by doing annual periodical maintenance. The opposite parties failed to prove that the incident had taken place without the negligence on their part. They did not adduce any evidence in this regard. Hence there is gross negligence from the part of opposite parties in maintaining the safety and security of the class room which amounts to deficiency in service on their part.
7. Point No.3:- According to the complainant consequent to the incident on 4.6.2013, he was taken to the Government Hospital, Alappuzha by the school authorities. Again he was taken to the Giridhar Eye Hospital, Ernakulam for emergency care and due to the injury complainant’s eye is partially damaged. Complainant produced the disability certificate issued by the Medical Board of Government T.D. Medical College Hospital, Alappuzha and it marked as Ext.C1. As per Ext.C1, “nature of disability is Traumatic Macular degeneration – right eye and the disability is of permanent nature and is partial and the total degree of disability having been found a 30% and comes under mild category.” Ext.A2 is the ophthalmic report issued from the Giridhar Eye Institute wherein he was admitted for treatment due to the injury. In the ophthalmic report it is stated that he was treated there on 4.6.2013 onwards and continued the treatment till 5.4.2014. According to the complainant he was again treated at Sreedharareeyam Ayurvedic Hospital in Koothattukulam. The discharge bill issued from the Sreedhareeyam Hospital also produced by the complainant. The documents produced by the complainant show that he had sustained serious injury to his right eye by the incident occurred in the class room.
8. The amount claimed by the complainant towards compensation is Rs.10 lakhs. As per Ext.C1 disability certificate, the complainant has 30% permanent, partial, mild disability. Complainant is a minor at the time of incident. Hon’ble Supreme Court in a decision reported in 2013 ACJ 2445 in Mallikarjun Vs. Divisional Manager, National Insurance Company Ltd. laid down that if the disability of a minor is above 10% and up to 30% to the whole body Rs.3 lakhs, up to 10% Rs.4 lakhs, up to 90% Rs.5 lakhs and above 90% it should be Rs.6 lakhs. In the instant case, since the complainant is a minor at the time of incident and has 30% disability he is entitled to get 3 lakhs towards compensation under the head of permanent disability. According to the complainant he is entitled to reimbursement of all amount spent towards treatment and for future treatment. It is an admitted fact that the treatment expenses at General Hospital and Giridhar Hospital were met by the opposite party. As per the Ext.A4 he has spent an amount of Rs.26,303/- for the further treatment at Sreedhareeyam Hospital. Hence he is entitled to get that amount. It is pertinent to notice that PW2 the doctor who issued the disability certificate and PW3 the doctor who treated the complainant deposed before the Forum that the complainant will not get driving license and also that he will not get a job wherein eye sight is insisted. Hence the complainant is entitled to get special damages on account of future loss of earning power due to the restrictions in job opportunity insisting 100% vision. Hence we are of opinion that the complainant is entitled to get the compensation as follows:-
1) Towards disability, pain and suffering already undergone and to be
suffered in future, and physical shock, hardship, inconvenience
and discomforts etc. : Rs.3,00,000/-
2) Discomfort, inconvenience and loss of earning to the parents during
the period of hospitalization : Rs. 25,000/-
3) Medical and incidental expenses : Rs. 26,303/-
4) Compensation under special damages : Rs.1, 50,000/-
TOTAL : Rs.5,01,303/-
=========
In the result complaint is allowed. The opposite party is directed to pay an amount of Rs.5,01,303/- (Rupees five lakhs one thousand three hundred and three only) to the complainant along with 8% interest from the date of complaint till realization. The opposite party is further directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 28th day of February, 2017.
Sd/- Smt. Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt. Jasmine D (Member) :
APPENDIX
Evidence of the Complainant:-
PW1 - Vishnu. J. (Witness)
PW2 - Dr. Manoj Venugopal (Witness)
PW3 - Dr. Mahesh. G. (Witness)
PW4 - Jayasimha (Witness)
Ext. A1 - O.P ticket from General Hospital
Ext.A2 - Ophthalmic Report dated 5.4.2014
Ext.A3 - Photos
Ext.A4 series - Bills
Ext.A5 - Receipts from Thiruvambady Higher Secondary School, Alappuzha
Ext.A6 - Copy of the application dated 6.7.2013
Ext.A7 - Copy of the Reminder dated 7.12.2013
Ext.A8 - Acknowledgement card
Ext.A9 - Discharge Summary and description of medicines from Sreedhareeyam Hospital
Ext.A10 - Copy of the admission application of Vishnu to Higher Secondary School,
Thiruvambady, Alappuzha during the period 2012-13
Ext.A11 - List of students admitted in Commerce Computer in HSS, Thiruvambady,
Alappuzha during the period 2012-13 Plus one course
Ext.C1 - Disability Certificate
Evidence of the opposite party:-
RW1 - Harikrishnan.B (Witness)
RW2 - Sakthikrishnan. M. (Witness)
RW3 - Uthamkumar (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
